Citation: R v Bowie (No 3) [2022] NSWSC 1504
Court: Supreme Court of New South Wales
Date: 4 November 2022
Judge: Yehia J
Background
The accused stands charged with murdering his wife at Walgett in June 1982. The Crown case is circumstantial, relying in part on items discovered during police excavations at a nearby property decades later. Among those items was a dress ring bearing the initial "R", which police located in 2019.
The Crown called a witness in her eighties who had been a close friend of the deceased during the early 1970s, seeing her approximately weekly over several years. In 2019, police showed the witness a single photograph depicting the recovered ring and asked whether she could comment on it. She identified it as "definitely" the deceased's ring.
During the witness's evidence-in-chief at trial, a dispute arose mid-testimony about three distinct evidentiary matters: her competence to give evidence at all, whether she should be permitted to refresh her memory from her 2019 statement, and whether her recognition of the ring (both from the photograph and in court) was admissible.
Legal Issues
- Whether the witness lacked the capacity to give evidence under section 13 of the Evidence Act 1995 (NSW)
- Whether the witness should be granted leave to refresh her memory from her 2019 statement under section 32
- Whether the witness's photograph-based recognition of the dress ring was relevant under section 55 and admissible under sections 137 and 138
- Whether the police procedure of showing the witness a single photograph (rather than a photo array) constituted an impropriety under section 138
- Whether the in-court identification of the physical ring itself was admissible
Decision
Issue 1: Competence
The court refused to exclude the witness's evidence under section 13. There was no medical, psychological or psychiatric evidence establishing a mental, intellectual or physical disability. Memory difficulties and inconsistencies with her statement went to the weight of her evidence, not her competence to give it (at [10]-[14]).
Issue 2: Memory Refreshment
Leave was granted under section 32(2)(b)(ii) for the witness to refresh her memory from paragraph 6 of her statement, which described the deceased's engagement and wedding rings. The witness had been unable to recall that description in evidence-in-chief, and she had signed the statement as accurate at the time of its making (at [22]-[23]). Leave was refused for paragraph 21, which described the dress ring, because the witness had already provided a description of that ring in her evidence-in-chief without indicating she could not recall it (at [24]).
Issue 3: Relevance and the Photograph Identification
The court found the evidence of the witness recognising the dress ring from the police photograph to be relevant. The accused argued the evidence was so lacking in probative value as to be incapable of rationally affecting a fact in issue, characterising it as inherently incredible or fanciful. The court rejected that characterisation, finding that any unreliability went to weight rather than relevance (at [44]-[45]). Under section 137, the court assessed probative value by taking the evidence at its highest and found that any risk of unfair prejudice arising from the identification procedure, including the 45-year gap and the use of a single photograph rather than an array, could be cured by strong judicial directions to the jury (at [61]-[62]).
Issue 4: Impropriety Under Section 138
The court noted that showing a witness a single photograph of a single object, rather than an array, is less than ideal and "should not be encouraged", particularly across such a long passage of time (at [56]). However, the accused bore the onus of establishing impropriety under section 138(1) and had provided no evidence of applicable police protocols or standard operating procedures. The court was not persuaded the conduct amounted to an impropriety as that concept is understood in section 138(1) (at [57]).
Issue 5: In-Court Identification of the Physical Ring
The court found that in-court recognition of the physical ring was not relevantly probative in the circumstances. Had relevance been established, the court would have excluded such evidence under section 137. Immediately before being shown the actual ring in court, the witness had already recognised it from the photograph. The significant risk was one of displacement: a jury might place undue weight on the in-court identification without appreciating that the witness was effectively recognising an object she had just seen in a photograph, rather than drawing on an independent memory of the ring itself (at [63]-[64]). Judicial directions could not adequately cure that prejudice.
Orders Made
- The application to exclude the witness's further evidence under section 13 of the Evidence Act was refused
- Leave was granted under section 32 for the witness to refresh her memory from paragraph 6 of her statement (dated 3 April 2019)
- Leave was refused to refresh her memory from paragraph 21 of that statement
- The evidence of the witness's identification of the dress ring from the 2019 photograph was found admissible
- The in-court identification of the physical ring (MFI 80) as belonging to the deceased was found inadmissible
Key Takeaways
- Memory difficulties and inconsistencies between a witness's evidence and prior statement do not, without more, establish incapacity to give evidence under section 13 of the Evidence Act; such matters go to weight rather than competence (at [13]).
- Under section 32(2)(b)(ii), a witness may be permitted to refresh her memory from a prior statement she signed as accurate, even where the statement was not made when events were fresh; leave is properly refused, however, where the witness has already given evidence on the topic without indicating any difficulty recalling it (at [22]-[24]).
- Where an accused seeks exclusion of evidence under section 138 on grounds of impropriety, the onus of establishing that impropriety falls on the accused; the absence of evidence about applicable police protocols or procedures will weigh against that finding (at [50], [57]).
- Showing a witness a single photograph of a single object, rather than a photo array, is described by the Supreme Court as less than ideal procedure that "should not be encouraged", but does not necessarily constitute an impropriety within the meaning of section 138(1) (at [56]-[57]).
- A significant displacement risk arises where a witness is asked to identify a physical object in court immediately after having been shown a photograph of that same object; in such circumstances, the danger of unfair prejudice from the in-court identification may outweigh its probative value under section 137, and judicial directions may be insufficient to remedy that prejudice (at [63]-[64]).
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW) ss 32(2)(b)(ii ), 55, 97, 137, 138
Cases
- IMM v The Queen [2016] HCA 14; 257 CLR 300
- Parker v Comptroller-General of Customs [2009] HCA 7; 83 ALJR 494
- R v Meyn, John Michael (No 1) [2012] NSWSC 1141
- Robinson v Woolworths Ltd [2005] NSWCCA 426; 64 NSWLR 612